Occupy Central

Ruling on student activists highlights the independence of Hong Kong judiciary

After quashing the jail terms of trio, the Court of Final Appeal also made it clear civil disobedience will be punished if the law at the time is breached  

PUBLISHED : Thursday, 08 February, 2018, 4:44am
UPDATED : Thursday, 08 February, 2018, 4:44am

The ruling by Hong Kong’s top court on three student activists jailed for an unlawful protest concludes one of the city’s most emotive cases in recent times.

The unanimous decision by five senior judges cannot easily be seized upon as a victory for one political camp or another, nor should it be seen in such terms.

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The significance of this judgment is that it clarifies an important area of the law and highlights the independence of Hong Kong’s judiciary.

The Court of Final Appeal quashed the jail terms imposed on Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang for their part in the storming of a government compound during a 2014 protest that effectively triggered the large-scale Occupy demonstrations.

Prison sentences of up to eight months were imposed by the Court of Appeal last August, after the Department of Justice argued the original non-custodial penalties handed down by a magistrate were inadequate.

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The top court ruled that the magistrate was entitled to pass the sentences she did, according to legal principles applying at the time. The Court of Appeal should not have stepped in and replaced them with jail terms.

But the judges did not stop there. They went on to endorse new, tougher guidelines for acts of civil disobedience, especially those involving violence, established by the Court of Appeal. This guidance will be of assistance to courts when dealing with such cases in the future. Everyone has been put on notice. 

Civil disobedience, while recognised in Hong Kong, will be punished if the law is breached. Serious cases, such as large-scale disorder and violence, are likely to be met with prison terms.

But the judges were also careful to acknowledge the importance of free expression. The courts will still retain much flexibility as each case depends on its own facts and circumstances. It will be for magistrates and judges to carefully weigh the different factors before deciding whether a jail term is appropriate.

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These new guidelines, however, cannot be applied retroactively, the court ruled. This is why they did not apply them to the student activists. The importance attached by the judges to this principle, which ensures people are judged only by the law as it stood at the time they committed the offence, is welcome.

The jailing of the student leaders led to allegations, notably in overseas media, of political bias on the part of the courts. This was not justified. The three courts which ruled on this case reached different decisions.

They did so after careful application of legal principles. Errors made by the Court of Appeal have been corrected by the top court. That is what the appeal process is for.

While political divisions persist and debate continues, the ruling leaves no doubt that Hong Kong continues to enjoy judicial independence.